861449 v.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH MARINO : 

: CIVIL ACTION 

v. : 

: NO. 02-cv-4488 

KENT LINE INTERNATIONAL d/b/a : 

VOYAGEUR SHIPPING LTD. : 

and : 

SLS, INC. d/b/a HOLT OVERSIGHT AND : 

LOGISTICAL TECHNOLOGIES : 

and : 

INCHCAPE SHIPPING : 

ORDER

AND NOW, this day of , 2003, upon consideration of the Motion for 

Summary Judgment filed by defendant Inchcape Shipping and any response thereto, it is hereby 

ORDERED that the Motion is GRANTED and Summary Judgment is hereby ENTERED in 

favor of defendant Inchcape Shipping. 

BY THE COURT: 

__________________________ 

J.

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 1 of 21
861449 v.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

JOSEPH MARINO : 

: CIVIL ACTION 

v. : 

: NO. 02-cv-4488 

KENT LINE INTERNATIONAL d/b/a : 

VOYAGEUR SHIPPING LTD. : 

and : 

SLS, INC. d/b/a HOLT OVERSIGHT AND : 

LOGISTICAL TECHNOLOGIES : 

and : 

INCHCAPE SHIPPING : 

DEFENDANT INCHCAPE SHIPPING’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed.R.Civ.P. 56(b), defendant Inchcape Shipping (“Inchcape”), by its 

attorneys, Rawle & Henderson, LLP, hereby move this Court to enter summary judgment in its 

favor and, in support thereof, avers as follows: 

1. Plaintiff is a longshoreman who was allegedly injured on June 23, 2000, while 

working aboard the M/V KENT VOYAGEUR, a vessel owned by defendant Kent Line 

International d/b/a/ Voyageur Shipping Ltd. (“Kent Line”) See Complaint attached as Exhibit 

“A.” See also deposition of Joseph Marino, attached in relevant part as Exhibit “B”, pages 15-

20. 

2. Inchcape is the shoreside agent or ship’s husbanding agent employed to manage 

the shoreside business of Kent Line vessels while they are in the Port of Philadelphia. The 

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2

possession of the vessel and its management and operation remain with Kent Line through its 

direct employees and agents, the master and the crew. Inchcape was acting under a standard 

form of general agency service agreement and was not an operating agent or owner pro hac vice 

of the KENT VOYAGEUR. Additionally, Inchcape was at all times acting as agent for a 

disclosed principal. See deposition of Capt. Crouse attached in relevant part as Exhibit “D,” p. 

195, 1. 2-5. 

3. Under these circumstances the general agent does not owe a duty of care to third 

persons with respect to the management and operation of the KENT VOYAGEUR by the master 

and crew of the vessel assigned to it by Kent Line. See Palardy v. American Hawaiian S.S. Co., 

169 F.2d 619 (3rd Cir. 1948). 

4. Although the plaintiff’s employer, the stevedore, was primarily responsible for the 

safety of the longshoremen, plaintiff filed this Complaint not only against the owners of the 

vessel, but against the owners’ local agent, seeking to recover damages that are covered under 

the Longshore and Harborworkers’ Compensation Act, 33 U.S.C. § 905(b). 

5. On the date in question, the M/V KENT VOYAGEUR was docked at the Trans 

Ocean Marine Terminal, in Gloucester City, New Jersey. See Exhibit “B”, p. 16, 1. 22. 

6. The vessel arrived in the port of Philadelphia with a cargo of steel products to be 

discharged by the longshore workers. Id. at p. 20, 1. 7-10. 

7. Plaintiff was one of five workers hired to work in the gang to discharge the steel 

cargo. See Exhibit “B”, p. 16, 1. 20 – p. 17, 1.2. 

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3

8. Plaintiff was an experienced longshore worker, having worked three years in this 

capacity on the waterfront. Id. at p. 16, 1. 13-16. 

9. Plaintiff and the other longshoremen started work aboard the M/V KENT 

VOYAGEUR on Thursday June 22, 2000. See Transocean Maritime Services, Inc. timesheets 

attached as Exhibit “C.” 

10. Plaintiff was in a hold of the vessel in the midst of discharging the cargo, when he 

allegedly suffered an injury. See Exhibit “B” at p. 20, 1. 7-17. 

11. Inchcape Shipping served as the husbanding agent for the owner of the vessel 

while she was in the port of Philadelphia. See deposition of Capt. Crouse attached in relevant 

part as Exhibit “D,” p. 195, 1. 2-5. 

12. Inchcape was at all times acting as an agent on behalf of a disclosed principal. 

id.; see also deposition of Inchcape boarding agent Shawn Allison attached in relevant parts as 

Exhibit “E,” p. 13, 1. 22-24 to p. 14, p. 53, 1. 1-18, p. 63, 1. 11-21. Therefore, Inchcape can not 

be held liable for any breach of duty by the vessel owners. If Inchcape is not found to be an 

agent on behalf of a disclosed principal there is no evidence that any standard of care was 

breached by Inchcape. 

13. Plaintiff’s action against Kent Line is governed by the standard of negligence 

which has evolved pursuant to judicial interpretation of § 5(b) of the 1972 Amendments to the 

LHWCA, 33 U.S.C. § 905(b). 

14. Congress enacted the 1972 Amendments to eliminate the shipowner’s previous 

faultless liability to longshoremen based upon theories of unseaworthiness or a non-delegable 

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4

duty to provide a safe place to work. An agent of a vessel does not have a duty to provide a 

seaworthy vessel. Plaintiff’s employer, the stevedore, was responsible for providing plaintiff 

with a safe place to work. 

15. The specific duties of a vessel owner include the following: (1) the turnover 

duty”, which includes a corollary “duty to warn;” (2) the “active participation duty”; and (3) the 

“intervention duty.” See Howlett v. Birkdale Shipping Co., S.A., 114 S.Ct. 2057, 2063, 512 U.S. 

92, 98-99 (1994); Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992); Derr v. Kawasaki Kisen 

K.K., 835 F.2d 490, 495-497 (3d Cir. 1987), cert. denied, 108 S.Ct. 1733, 486 U.S. 1007 (1988). 

16. The “turnover duty” and “duty to warn” govern a shipowner’s conduct before 

cargo operations have begun. See Howlett, 114 S. Ct. at 2063, 512 U.S. at 98; see also Kirsch, 

971 F.2d at 1029. 

17. Under the “turnover duty,” before turning over the ship or any portion of the ship 

to the stevedore, a vessel owner has a duty to exercise “ordinary care under the circumstances to 

have the ship and its equipment in such condition that an expert and experienced stevedore will 

be able by the exercise of reasonable care to carry on its cargo operations with reasonable 

safety.” Scindia Steam Navigation, Ltd. v. De Los Santos, 101 S.Ct. 1614, 1622, 451 U.S. 156, 

167 (1981). 

18. The corollary “duty to warn” requires a vessel owner to warn the stevedore about 

“hidden dangers” on the vessel of which the shipowner has actual knowledge before the vessel is 

turned over to the stevedore. See Derr, 835 F.2d at 493; Howlett, 512 U.S. at 98-99. 

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19. Under the “active participation duty,” a vessel owner may be held liable if it fails 

to “exercise reasonable care to prevent injuries to longshoremen in areas that remain under the 

‘active control of the vessel.’” Howlett, 114 S. Ct. at 2063, 512 U.S. at 98-99, quoting, Scindia, 

101 S. Ct. at 1622, 451 U.S. at 167; See also Davis v. Portline Transportes Maritime, 16 F.3d 

532 (3d Cir. 1994). 

20. Finally, a vessel owner may have a “duty to intervene” in the cargo operations of 

an independent stevedoring contractor if it has actual knowledge of a hazard and actual 

knowledge that it cannot rely upon the stevedore to avoid or eliminate the hazard. See Scindia, 

101 S.Ct. at 1626, 451 U.S. at 175-176; Derr, 835 F.2d at 496. 

21. There is no evidence that Inchcape was delegated any of the above duties or that it 

breached any of the above duties; if this Court determines that Inchcape did have a duty, it is 

plaintiff’s burden to set forth disputed issues of material fact which establish that the vessel 

owner duties were delegated to it and that a breach of the duty occurred. Plaintiff can not meet 

this burden. 

 WHEREFORE, defendant Inchcape Shipping requests that this Court enter summary 

judgment in its favor and that plaintiff’s Complaint be dismissed as to it. 

 RAWLE & HENDERSON LLP 

By:______________________________ 

Ann-Michele G. Higgins, Esquire 

The Widener Bldg., 16th Floor 

One S. Penn Square 

Philadelphia, PA 19107 

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(215) 575-4200 

Attorney for Defendant, 

Inchcape Shipping 

DATED: August 25, 2003

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 7 of 21
861449 v.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH MARINO : 

: CIVIL ACTION 

v. : 

: NO. 02-cv-4488 

KENT LINE INTERNATIONAL d/b/a : 

VOYAGEUR SHIPPING LTD. : 

and : 

SLS, INC. d/b/a HOLT OVERSIGHT AND : 

LOGISTICAL TECHNOLOGIES : 

and : 

INCHCAPE SHIPPING : 

DEFENDANT INCHCAPE SHIPPING’S MEMORANDUM OF LAW 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

I. SUMMARY JUDGMENT STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be 

granted if “the pleadings, depositions, answers to interrogatories, and admissions on file ... show 

that there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” Fed R. Civ. P. 56(c). Applying this rule, the Supreme Court 

delineated the standard applicable to motions for summary judgment in what has been termed 

“its summary judgment trilogy.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 477 U.S. 317 (1986); 

Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 477 U.S. 242 (1986); Matsushita Elec. Indus. 

Co. v. Zenith Radio Co., 106 S. Ct. 1348, 475 U.S. 574 (1986). In Celotex, the Court said: 

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2

In our view, the plain language of Rule 56(c) mandates the entry of 

summary judgment, after adequate time for discovery and upon 

motion, against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, 

and on which that party will bear the burden of proof at trial. In 

such a situation, there can be no genuine issue as to any material 

fact, since a complete failure of proof concerning an essential 

element of the nonmoving party’s case necessarily renders all other 

facts immaterial. 

106 S. Ct. at 2553, 477 U.S. at 322-23 (emphasis added). This language was rephrased in 

Liberty Lobby when the Court stated “[the summary judgment] standard mirrors the standard for 

a directed verdict . . . which is that the trial judge must direct a verdict if under the governing 

law, there can be but one reasonable conclusion as to the verdict.” 106 S. Ct. at 2511, 477 U.S. 

at 243. 

The mandatory language of these decisions expresses the Supreme Court’s 

viewpoint that summary judgment is not a harsh sanction to be avoided. In fact, the Supreme 

Court stated the “summary judgment procedure is properly regarded not as a disfavored 

procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are 

designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex, 

106 S. Ct. at 2555, 477 U.S. at 325 quoting Fed. R. Civ. P. 11. “One of the principle purposes of 

the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, 

and we think it should be interpreted in a way to accomplish this purpose.” Id. at 2553, 477 U.S. 

at 323. Consequently, “a party resisting a motion for summary judgment must come forward 

with more than speculation in order to raise a material issue of fact.” Keystone Data Systems, 

Inc. v. James F. Wild, Inc., 549 F. Supp. 790, 792 (E.D. Pa. 1982); see also Gans v. Mundy, 762 

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3

F.2d 338, 343 (3d Cir. 1985), cert. denied 106 S. Ct. 537, 474 U.S. 1010 (1985); Zimmer Paper 

Products, Inc. v. Berger & Montague, P.C., 758 F.2d 86, 94 (3d Cir. 1985), cert. denied, 106 S. 

Ct. 228, 474 U.S. 902 (1985). “Therefore, while the moving party bears the initial burden of 

informing the court of the basis for its motion, and identifying those portions of the record which 

demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of 

summary judgment ‘against a party who fails to make a showing sufficient to establish the 

existence of an element essential to that party’s case, and on which that party will bear the 

burden of proof at trial.’” Davis v. Kambara Kisen Co. Ltd., 1990 A.M.C. 2825, 2826 (E.D. Pa. 

1990), quoting Celotex, 106 S.Ct. at 2553, 477 U.S. 317. 

In this case, plaintiff bears the burden of establishing that Inchcape had a duty of 

care toward plaintiff. If this court does determine that Inchcape had a duty of care, it should be 

plaintiff’s burden to prove that Inchcape breached a duty of care under §905(b) of the LHWCA, 

33 U.S.C. §905(b). However, as discussed below, plaintiff cannot carry this burden. 

A. THE VARIOUS DUTIES AT ISSUE

1. A shoreside agent does not owe a duty to longshoremen 

Inchcape is the shoreside local agent or ship’s husband employed to manage the 

shoreside business of Kent Line vessels while they are in the Port of Philadelphia. The 

possession of the vessel and its management and operation remain with Kent Line through its 

direct employee and agent, the master. Inchcape was acting under a standard form of general 

agency service agreement and was not an operating agent or owner pro hac vice of the KENT 

VOYAGEUR. See deposition of Capt. Crouse attached in relevant part as Exhibit “D,” p. 195, 

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1. 2-5. Under these circumstances the general agent, Inchcape, does not owe a duty of care to 

third persons with respect to the management and operation of the KENT VOYAGEUR by the 

master and crew of the vessel assigned to it by Kent Line. See Palardy v. American Hawaiian 

S.S. Co., 169 F.2d 619 (3rd Cir. 1948). In Palardy, the trial judge directed a verdict for the 

defendant holding that a general agent for a vessel owner is not an operating agent or owner pro 

hac vice of the vessel and does not owe a duty of care to third persons with respect to the 

management and operation by the master and crew. The Third Circuit Court of Appeals in 

reviewing the case explained the relationship of the agent as follows: 

As we have had occasion to point out in two other cases decided 

this day, Aird v. Weyerhaeuser Steamship Company, 169 F.2d 606, 

and Gaynor v. Agwilines, Inc., 169 F.2d 612, a general agent for 

the United States, such as American-Hawaiian Steamship 

Company, acting under the standard form of general agency 

service agreement in use during the period in question is not an 

operating agent or owner pro hac vice of the vessel assigned to it 

but rather is a shoreside agent or ship’s husband employed to 

manage the business of the vessel. 

Based on the type of relationship the Third Circuit Court of Appeals upheld the directed verdict 

and held “[u]nder these circumstances the general agent does not owe a duty of care to third 

persons with respect to the management and operation by the Master and crew of the vessel 

assigned to it by the government. Id. at 620 citing Caldaroki v. Eckert, 1947, 332, U.S. 155, 159, 

67 S.Ct. 1569, 91 L.Ed. 1968. Here the same type of agency relationship is in place. Inchcape is 

a husbanding agent and there is no evidence that it is an operating agent or owner pro hac vice. 

Therefore, Inchcape owed no duty of care toward third parties aboard the vessel. The Supreme 

Court has held that a vessel owner does not have a duty to supervise or inspect the cargo 

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operations of an independent stevedore and, generally, a vessel owner cannot be held liable for 

hazards that arise during the course of the cargo operations, although the Court did leave open 

the possibility that a vessel owner may have a “duty to intervene” under very limited 

circumstances. See Carpenter v. Universal Star Shipping S.A., 924 F.2d 1539 (9th Cir. 1991), 

cert. denied, 506 U.S. 955 (1992) (no duty to intervene unless the hazard involves the ship’s 

gear). If the vessel owner has such limited duties, and it is actually managing the vessel, if the 

vessel’s agent owed any duty of care it would be an even lesser standard than that of a vessel 

owner. Based on the facts developed to date, plaintiff could never prove that Inchcape breached 

such a limited duty. 

2. The Longshore and Harbor Worker’s Compensation Act

Plaintiff’s action against the defendants is governed by the standard of negligence 

that has evolved pursuant to judicial interpretation of §5(b) of the 1972 Amendments to the 

LHWCA, 33 U.S.C. §905(b). The history and purpose of the 1972 Amendments has been 

detailed by the United States Supreme Court in Scindia Steam Navigation, Ltd. v. De Los 

Santos, 101 S. Ct. 1614, 451 U.S. 156 (1981) and more recently in Howlett v. Birkdale Shipping 

Co., S.A., 114 S.Ct. 2057, 512 U.S. 92 (1994). Briefly summarized, Congress enacted the 1972 

Amendments to eliminate the shipowner’s previous faultless liability to longshoremen based 

upon theories of unseaworthiness or a non-delegable duty to provide a safe place to work. 

“Congress believed that it was fairer, and fully consistent with the goal of promoting safety, for 

the vessel’s liability ‘to be predicated on negligence, rather than the no-fault concept of 

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seaworthiness.’” Derr v. Kawasaki Kisen K.K., 835 F.2d 490, 492 (3d Cir. 1987), cert. denied, 

108 S. Ct. 1733, 486 U.S. 1007 (1988), quoting H.R. Rep. No. 1441, 2d Cong. 2d Sass. (1972), 

reprinted in 1972 U.S. Code Cong. & Admin. News 4698, 4703. “The design of these changes 

was to shift more of the responsibility for compensating injured longshoremen to the party best 

able to prevent injuries: the stevedore-employer. Subjecting vessels to suit for injuries that 

could be anticipated and prevented by a competent stevedore would threaten to upset the balance 

Congress was careful to strike in enacting the 1972 Amendments.” Howlett, 512 U.S. at 97 

(citations omitted). 

 Although Congress made it clear that shipowners shall only be held liable for 

their “own negligence,” it did not specify the acts or omissions that would constitute negligence. 

Instead, Congress left that issue to “be resolved through the application of accepted principles of 

tort law and the ordinary process of litigation - just as they are in cases involving alleged 

negligence by land based third parties.” Id. 

 After the 1972 Amendments became law, the lower federal courts reached 

varying conclusions regarding the construction and application of § 905(b). In Scindia, 

therefore, the United States Supreme Court defined the duties that a vessel owner owes to 

longshoremen who board a vessel to perform cargo operations. Scindia Steam Navigation Co. v. 

De Loss Santos, 451 U.S.156, 175-76 (1981). In doing so, the Supreme Court drew a distinction 

between the duties owed before the vessel is turned over to the stevedore for cargo operations 

and the vessel owner's obligations after cargo operations have begun. In addition, the Supreme 

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Court drew a clear distinction between hazards related to cargo work and hazards arising from 

defects in the ship or its equipment. 

 The Supreme Court held that, before cargo operations begin, a vessel owner owes 

to the stevedore and its longshoremen-employees a duty of “due care” to have the “ship and its

equipment” in a reasonably safe condition and a corollary “duty to warn” about hidden hazards 

that would not be obvious to or anticipated by a reasonably competent stevedore: 

 This duty extends at least to exercising ordinary care under the 

circumstances to have the ship and its equipment in such condition 

that an expert and experienced stevedore will be able by the 

exercise of reasonable care to carry on its cargo operations with 

reasonable safety to persons and property, and to warning the 

stevedore of any hazards on the ship or with respect to its 

equipment that are known to the vessel or should be known to it in 

the exercise of reasonable care, that would likely be encountered 

by the stevedore in the course of his cargo operations and that are 

not known by the stevedore and would not be obvious to or 

anticipated by him if reasonably competent in the performance of 

his work. The shipowner thus has a duty with respect to the 

condition of the ship's gear, equipment, tools, and work space to be 

used in the stevedoring operations; and if he fails at least to warn 

the stevedore of hidden danger which would have been known to 

him in the exercise of reasonable care, he has breached his duty 

and is liable if his negligence causes injury to a longshoreman. 

Id. at 166-67 (citations omitted). The duties established in this passage have been termed the 

“turnover duty” and the “duty to warn.” As noted, they define the shipowner's conduct before 

cargo operations have begun. 

 In Scindia, the Supreme Court also defined a vessel owner's duty of care after the 

vessel has been turned over to the stevedore for cargo operations: 

 We are of the view that absent contract provision, positive 

law, or custom to the contrary ... the shipowner has no general duty 

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by way of supervision or inspection to exercise reasonable care to 

discover dangerous conditions that develop within the confines of 

the cargo operations that are assigned to the stevedore. The 

 necessary consequence is that the shipowner is not liable to the 

longshoremen for injuries caused by dangers unknown to the 

owner and about which he had no duty to inform himself. This 

conclusion is plainly consistent with the congressional intent to 

foreclose the faultless liability of the shipowner based on a theory 

of unseaworthiness or nondelegable duty. The shipowner, within 

limits, is entitled to rely on the stevedore, and owes no duty to the 

longshoremen to inspect or supervise the cargo operations. 

. . . . 

 Yet it is quite possible, it seems to us, that Seattle's 

judgment in this respect was so obviously improvident that 

Scindia, if it knew of the defect and that Seattle was continuing to 

use it, should have realized the winch presented an unreasonable 

risk of harm to the longshoremen, and that in such circumstances it 

had a duty to intervene and repair the ship's winch. The same 

would be true if the defect existed from the outset and Scindia 

must be deemed to have been aware of is condition. 

Id. at 168-69, 172, 175-76. In Scindia, therefore, the Supreme Court held that a vessel owner 

does not have a duty to supervise or inspect the cargo operations of an independent stevedore 

and, generally, a vessel owner cannot be held liable for hazards that arise during the course of the 

cargo operations, although the Court did leave open the possibility that a vessel owner may have 

a “duty to intervene” under very limited circumstances. See Carpenter v. Universal Star 

Shipping S.A., 924 F.2d 1539 (9th Cir. 1991), cert. denied, 506 U.S. 955 (1992) (no duty to 

intervene unless the hazard involves the ship’s gear). Finally, the Supreme Court stated that a 

“vessel may be liable if it actively involves itself in the cargo operations and negligently injures a 

longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from 

hazards they may encounter in areas, or from equipment, under the active control of the vessel 

during the stevedoring operation.” Id. at 167 (emphasis added). 

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 Overall, four duties were recognized by the Supreme Court in the Scindia

decision: (1) the “turnover duty” which includes a corollary “duty to warn,” (2) the “duty to 

intervene” and (3) the “active participation duty.” These duties were crafted based on an 

analysis of the roles played by the stevedore and the vessel owner, the expertise of each and the 

goal of promoting safety. In doing so, the Supreme Court drew a sharp distinction between 

hazards that fall within the scope of the stevedore’s work and other types of hazards. Based on 

the above, it can be seen that the Supreme Court holds the stevedore employer primarily 

responsible for the longshoremen’s safety. The vessel owner has very limited and specific 

duties. A husbanding agent such as Inchcape has no general duty, additionally, there is no 

evidence that Inchcape assumed any of the vessel duties. Therefore, summary judgment should 

be granted in Inchcape’s favor. 

II. ARGUMENT 

In plaintiff’s Complaint, longshoreman Marino claims injury while engaged in the 

discharge of the M/V KENT VOYAGEUR on June 23, 2000. He was not injured by any part of 

the vessel or in an area controlled by the vessel owner. Plaintiff instituted suit against (Kent Line 

International d/b/a Voyageur Shipping), owners of the M/V KENT VOYAGEUR, and Inchcape 

Shipping Services. In plaintiff’s Complaint, he avers that Inchcape is a Steamship Agency for its 

principal, Kent Line. This allegation was admitted by the movant. In a count of negligence 

against Inchcape, plaintiff avers that Inchcape assumed the seaworthiness of the vessel, and that 

Inchcape was negligent or careless in that it failed to adequately oversee the removal of the 

cargo, and somehow breached a duty to warn stevedores [sic] of the dangerous nature of the 

cargo and so forth. 

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Inchcape was established that at no time did the owners delegate the 

seaworthiness of the vessel to Inchcape. Further, testimony from a representative of the 

discharging stevedore was established that at no time was Inchcape responsible or did it interfere 

with the discharge of the cargo from the vessel. Finally, Inchcape, through submission of its 

own testimony, was established that it had no duty and therefore was not negligent in failing to 

warn Mr. Marino of the duties attendant with his job description. Therefore, summary judgment 

is appropriate. 

At plaintiff’s deposition, plaintiff could testify only that he believed that Inchcape 

was responsible for somehow contracting with the cargo interests that would have loaded the 

cargo on board the vessel. Exhibit “B,” p. 68, 1. 6-15. As a practical matter, the call of a vessel 

such as the M/V KENT VOYAGEUR into the port of Philadelphia is a regular occurrence. In 

this case, a cargo receiver wanted to obtain steel for its business. It therefore contracted with the 

shipper to make arrangements for the trade. This is evidenced by the bill of lading where the 

cargo interests are referred to as the shipper and the receiver. In this case, the shipper then made 

arrangements with the carrier, Kent Line as owner of the M/V KENT VOYAGEUR, to have the 

cargo shipped on board the vessel and to be carried from the load port to the port of discharge, 

the Port of Philadelphia at Gloucester, New Jersey. As vessel’s owned by Kent Line which 

travel to many far and away places, it is not the practice for the owners to have an office in each 

port city. Rather, they procure the services of an agent to act on its behalf processing the 

paperwork and communicating with the Captain and assisting the Captain with any needs while 

the vessel is in the port of Philadelphia. In this case, Kent Lines appointed Inchcape Shipping to 

act as its local husbanding agent while the vessel was in the port of Philadelphia. In that regard, 

the Master would inform Inchcape when he expected his vessel to arrive. Inchcape would act as 

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a communicator, and passed information on to regulatory agencies, such as the U.S. Coast Guard 

and Customs, and also to the business entities that would be involved. These entities would 

include the discharging stevedore, to advise when the ship would be available to commence 

discharge. It might also assist with having groceries, or stores, delivered on board the vessel. It 

is important to note that Inchcape would not determine what time discharge of the vessel would 

occur, but merely acts as a communicator and facilitator to make sure the parties have the 

appropriate information to conclude their business transaction. 

When the vessel arrives in port, there are always regulatory agencies waiting to 

greet the Captain. The agent attends on board at this stage, and assists the Master in any needs 

that might come up. Thereafter, the agent may check in with the Master every day or so, or 

address more particular concerns if issues arise. At no time during this period do the owners 

delegate or abrogate any of their responsibilities regarding the seaworthiness of the vessel to a 

husbanding agent. Concurrently, the discharging stevedore would be interested only in that any 

representative on board the vessel stay out of the way of cargo operations, so as not to interfere 

or indeed be injured. Such was the case here, and Inchcape performed only the services for 

which it was retained, namely to act as an agent for a disclosed principal to assist the vessel 

while in port. 

Based on the above, it is clear that Inchcape did not owe any general duty of care 

to plaintiff. Additionally, there is no evidence that Inchcape delegated any duty of care that it 

might have owed to plaintiff and Inchcape. Finally, there is no evidence that any of the vessel 

owner duties were ever breached. 

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 18 of 21
861449 v.1 

12

RAWLE & HENDERSON LLP 

By:______________________________ 

Ann-Michele G. Higgins, Esquire 

The Widener Bldg., 16th Floor 

One S. Penn Square 

Philadelphia, PA 19107 

(215) 575-4200 

Attorney for Defendant, 

Inchcape Shipping 

DATED: August 25, 2003

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 19 of 21
861449 v.1 

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of defendant Inchcape Shipping’s 

Motion for Summary Judgment, was sent via U.S. first class mail, postage pre-paid to the 

following counsel and/or parties of record: 

Thomas More Holland, Esquire 

Law Offices of Thomas More Holland 

1522 Locust Street 

Grace Hall 

Philadelphia, PA 19102 

Attorney for Plaintiff

A. Robert Degen, Esquire 

Fox, Rothschild, O’Brien & Frankel 

2000 Market Street, Tenth Floor 

Philadelphia, PA 19103-3291 

Faustino Mattioni, Esquire 

Mattioni, Ltd. 

399 Market Street, 2nd floor 

Philadelphia, PA 19106-2138 

RAWLE & HENDERSON LLP

By:_______________________________ 

Anne A. Cave 

The Widener Building 

One South Penn Square 

Philadelphia, PA 19107 

(2l5) 575-4200 

DATED: August 25, 2003

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 20 of 21
0743070.01

861449 v.1 

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of defendant Inchcape Shipping’s 

Memorandum of Law, was sent via U.S. first class mail, postage pre-paid to the following 

counsel and/or parties of record: 

Thomas More Holland, Esquire 

Law Offices of Thomas More Holland 

1522 Locust Street 

Grace Hall 

Philadelphia, PA 19102 

Attorney for Plaintiff

A. Robert Degen, Esquire 

Fox, Rothschild, O’Brien & Frankel 

2000 Market Street, Tenth Floor 

Philadelphia, PA 19103-3291 

Faustino Mattioni, Esquire 

Mattioni, Ltd. 

399 Market Street, 2nd floor 

Philadelphia, PA 19106-2138 

RAWLE & HENDERSON LLP

By:_______________________________ 

Anne A. Cave 

The Widener Building 

One South Penn Square 

Philadelphia, PA 19107 

(2l5) 575-4200 

DATED: August 25, 2003 

Case 2:02-cv-04488-BMS Document 43 Filed 08/25/2003 Page 21 of 21